Shariati v Commissioner for Fair Trading [2014] NSWCATOD 146

Shariati v Commissioner for Fair Trading [2014] NSWCATOD 146

The Tribunal found that, despite irregular payment and tax arrangements, the totality of the relationship showed that Mr Shariati was Mr Riman's employee: Mr Riman exercised significant control, directed the sites and tasks, paid him personally, engaged him full time and paid him during holidays or sickness. Mr Riman supervised and directed the work sufficiently by attending the site daily, checking work and being available by telephone. The applicant worked more than two years across the Chester Hill, Ashcroft and Fairfield sites and gained wide-ranging building construction experience. Accordingly, he met the Instrument's experience requirement and the correct and preferable decision...

Jurisdiction
Australia
Judgment Date
05 December 2014
Procedural Posture
Administrative Law Merits Review of Refusal of Application for Supervisor Certificate / Review in the NSW Civil and Administrative Tribunal After Internal Review Confirmed the Original Refusal
Outcome
The respondent's decision to refuse the applicant's application for a supervisor certificate was set aside and, in substitution, the application was granted.
Legal Topics
['supervisor Certificate for General Building Work' 'relevant Industry Experience' 'employee or Independent Contractor' 'supervision and Direction' 'wide Range of Building Construction Work']
['administrative Law' 'occupational Licensing' 'home Building Regulation'] ['supervisor Certificate for General Building Work' 'relevant Industry Experience' 'employee or Independent Contractor' 'supervision and Direction' 'wide Range of Building Construction Work']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Administrative Law Merits Review of Refusal of Application for Supervisor Certificate / Review in the NSW Civil and Administrative Tribunal After Internal Review Confirmed the Original Refusal

Legal Issues

  1. 1 ["Whether the applicant had at least two years' relevant industry experience in a wide range of building construction work." "Whether the applicant's experience with Mr Riman was gained as an employee rather than as an independent contractor or subcontractor." 'Whether the applicant was supervised and directed in the doing of the work by the holder of an endorsed contractor licence or supervisor certificate.' "Whether the respondent's refusal of the application for a supervisor certificate was the correct and preferable decision."]

Ratio Decidendi

The Tribunal found that, despite irregular payment and tax arrangements, the totality of the relationship showed that Mr Shariati was Mr Riman's employee: Mr Riman exercised significant control, directed the sites and tasks, paid him personally, engaged him full time and paid him during holidays or sickness. Mr Riman supervised and directed the work sufficiently by attending the site daily, checking work and being available by telephone. The applicant worked more than two years across the Chester Hill, Ashcroft and Fairfield sites and gained wide-ranging building construction experience. Accordingly, he met the Instrument's experience requirement and the correct and preferable decision...

Court Disposition

The respondent's decision to refuse the applicant's application for a supervisor certificate was set aside and, in substitution, the application was granted.

Orders

  • ["The respondent's decision to refuse the applicant's application for a supervisor certificate is set aside." "In substitution for that decision, the applicant's application for a supervisor certificate is granted."]